Derr v. Dellinger
| Citation | 75 N.C. 300 |
| Court | North Carolina Supreme Court |
| Decision Date | 30 June 1876 |
| Parties | J. W. DERR v. J. F. DELLINGER and others. |
The legal effect of a contract of sale, and a bond for title in pursuance thereof, is to create an equitable estate in the vendee, leaving the legal title in the vendor, in trust to secure the payment of the purchase money, and then in trust to convey to the vendee.
Such equitable estate may be annihilated by the act of the party holding the legal title, in passing it to a purchaser for valuable consideration, without notice; in which case, the owner of the equitable estate must look to the trustee for compensation. If the purchaser has notice, he takes the legal title subject to the equitable estate.
One does not forfeit his equitable estate, by failing to make payment on the day his bond falls due; nor because he did not pay the money himself, but procured another person to pay and take the deed in his own name, under a verbal trust for such owner; nor because the agreement between them, was not in writing, and void under the statute of Frauds; nor because such agreement was without consideration. The owner of such equitable estate will not forfeit the same for any of the foregoing reasons, or for all combined.
CIVIL ACTION, in the nature of Ejectment, tried before BUXTON, J., at Spring Term, 1876, of LINCOLN Superior Court.
The plaintiff filed a complaint in the ordinary form against the defendants to recover the possession of the locus in quo. Mrs. Hettie Smith, one of the defendants, filed an answer, alleging that the locus in quo was the property of herself and J. F. Dellinger, and that the other defendants were her tenants, and she claims title thereto, as follows:
That by a deed, dated January 15th, 1859, executed by J. F. & R. D. Johnson, the plaintiff obtained title to, and possession of, several tracts of land, among others, one known as the “Meadow tract;” and further, that she claims that the J. F. Dellinger tract which is in the possession of and owned by the defendant, is included in the “Meadow tract,” or some of the other tracts attempted to be conveyed by the aforesaid deed.
That on January 13th, 1857, J. F. Johnson entered into a bond to make title to J. F. Dellinger for about one hundred and twenty-two acres of land, and Dellinger being unable to comply with the conditions of the bond, assigned the same to J. M. Smith, who did comply with said conditions, and received from J. F. & R. D. Johnson a deed in fee simple for said tract of land. This tract of land was devised by J. M. Smith to the defendant, and the same is now in her possession, except the tract owned by Dellinger. She supposes this land is the locus in quo, or a part thereof.
For a second ground of defence she alleges: That the deed under which the plaintiff claims is void because of the uncertainty of the description of the land attempted to be conveyed thereby.
That the plaintiff had full notice of said bond for title, and that he received from R. D. & J. F. Johnson, with full knowledge of the outstanding bond for title, to J. F. Dellinger.
R. D. & J. F. Johnson moved the court that they be made parties to the action, alleging that J. F. Johnson, prior to the execution of the deed from R. D. & J. F. Johnson to J. W. Derr, had contracted by bond to convey the locus in quo to J. F. Dellinger, upon payment of the purchase money, as stipulated in the bond, and that it was understood and agreed at the time of the execution of the deed to Derr, that if the Dellinger tract was paid for at the maturity of the notes as stated in the bond, that then J. F. & R. D. Johnson were to convey the land to Dellinger, and that if the notes were not paid, then the land was to belong to Derr. That they had conveyed the same piece of land to Derr and to Dellinger with warranty. That however the action might terminate they were liable on their warranty. They therefore prayed that they might be allowed to set up this defence, and that the deed from them to Derr might be reformed.
The motion was refused by the court and exception taken.
The plaintiff introduced a deed from R. D. & J. F. Johnson to himself, dated January 15th, 1859, and duly registered, conveying to him the locus in quo. He also...
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Lynch v. Johnson
...to permit him to participate in a fraud and profit thereby." He who takes with notice of an equity takes subject to the equity ( Derr v. Dellinger, 75 N.C. 300), and Mr. says (volume 2, § 753, Pom. Eq. Jur.): "The rule is universal and elementary that, if a purchaser in any form receives no......
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Lynch v. Johnson
...him to participate in a fraud and profit thereby." He who takes with notice of an equity takes subject to the equity (Derr v. Dellinger, 75 N. C. 300), and Mr. Pomeroy says (volume 2, § 753, Pom. Eq. Jur.): "The rule is universal and elementary that, if a purchaser in any form receives noti......
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Chandler v. Cameron, 240.
...Wagner v. Consolidated Realty Corporation, 210 N.C. 1, 185 S.E. 421; Morris v. Basnight, 179 N.C. 298, 102 S.E. 389; Derr v. Del-linger, 75 N.C. 300; Justice v. Carroll, 57 N.C. 429. Chandler had no personal or actual notice of the contract between Cameron and McLeod. This fact renders it u......
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Chandler v. Cameron
... ... See, also, Wagner v. Consolidated Realty ... Corporation, 210 N.C. 1, 185 S.E. 421; Morris v ... Basnight, 179 N.C. 298, 102 S.E. 389; Derr v ... Dellinger, 75 N.C. 300; Justice v. Carroll, 57 ... N.C. 429 ... ... Chandler had no personal or actual notice of the ... ...